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Trees

A tree or shrub belongs to the owner of the land on which
it grows even if its branches or roots go over or under adjoining land. This
includes the branches and the fruit of any tree or shrub. This even applies
to windfall apples etc. The Theft Act 1968 makes it a criminal offence to
take wild flowers, fruit and foliage from any plant if it is sold for commercial
gain. However, falling leaves and fruit still belong to the owner of the tree
or shrub, the law does not require the owner to come and sweep up the leaves
or pick up the fruit. Having said that if falling leaves block a gutter, which
results in water damage, the owner of the tree could be sued for damage.

You are not allowed to go onto your neighbours land or to lean over it to
cut your hedge. You need the permission of your neighbour. The same is true
about going onto your neighbours land to pick up windfalls or trim back branches.

Over Hanging Branches

Branches that grow so as to overhang your neighbours' land
are trespassing on his air space. The neighbour can chop the branches back
to the boundary but he has to return the lopped branches to the owner of the
tree together with any fruit that might have been on them. If he lops beyond
his boundary then it is a trespass. It is always best to ask your neighbour
first although you do not need his permission to lop overhanging branches
so long as they are returned.

You could sue the owner of the tree or shrubs for trespass; nuisance and/or
negligence (in this case if they become dangerous).

More...

You should look at the Discussion
Forum for a useful discussion in relation to overhanging branches.

High Hedges

A government Bill giving Local Authorities the power to
control evergreen or semi-evergreen hedge heights seems set to become law.
A residential occupier can complain to his Local Authority if :

1. A hedge is evergreen or semi-evergreen.
2. It is over 2m in height.
3. It is "unreasonably restricting " light to the property.

The Local Authority can issue a "remedial notice" on the owner eg
to reduce its height. Failure to take action can result in a fine of up to
£1000 and daily fines for so long as the failure continues.

Tree Preservation Orders

To protect a tree of group of trees or woodlands a local authority can make
a tree preservation order to prohibit felling, topping, lopping or up-rooting
or other wilful damage to listed trees. The local authority takes enforcement
proceedings against the wrong doer in the Magistrates Court. The court can
impost a fine not exceeding scale 4 which at the present time is £20,000.00
and can require replanting of the tree.

In order to make a Tree Preservation Order the local authority has to give
the land owner written notice and advertise the proposed order in the newspaper.
Objectors have 28 days in which to make written objections.

Once an order is made, only the local authority can enforce it. A concerned
member of the public can apply to the local authority as soon as they are
aware that a tree is at risk, but that person cannot take action on their
own behalf.

Roots

Like branches, roots that grow from your land onto a neighbours
are trespassing. Your neighbour can chop the roots along the boundary line
and does not need your permission to do so.

Roots can often lead to substantial damage e.g. by growing under the foundations
of the house and causing them to become unsafe or by causing the soil to dry
out resulting in subsidence. In these cases damage will be :-

1. The cost of repairs
2. The reduction in the value of the house if there is a loss on sale.
3. Any other expenses directly arising from the trespass.
4. In all likelihood the legal costs of the person who has suffered the damage.
5. An order by the court that the owner of the tree cuts back the branches
or the roots or takes down the tree itself.

Subsidence/damage caused by tree roots will involve a claim, which will generally
be a nuisance rather than trespass if it has to go to Court. Naturally a negotiated
agreement with neighbours would be far preferable.

This might seem a strange way of looking at someone else's tree roots coming
under your land. The Courts have decided that trespass involves a direct action
rather than just by allowing the roots to grow. The same is true of overhanging
branches.

A number of arborculturalists have said that the above Table is far too cautious
but you must decide for yourselves. Only one has submitted an alternative
and here it is (gardenlaw makes no comment about the relative merits of either
set of distances claiming no knowledge in this field) :

"You include a table of safe planting distances. This appears to be
contain the data so popular with excessively cautious insurance companies
and occasionally reproduced by alarmist Sunday papers.

It appears to be based on Cutler DF & Richardson IBK (1989), "Tree
Roots and Buildings" 2nd ed, Longman, which outlines the results of a
survey undertaken by the authors at Kew between 1971 - 1979 of the incidence
of subsidence damage on shrinkable clay in which trees are implicated.

The figures given in the table you reproduce are the maximum distances at
which any damage was ever recorded. They represent extreme examples that are
statistically unlikely. It is also important to remember that the survey dealt
exclusively with trees in the SE of England on highly shrinkable clay soils.
On non-shrinkable soils this type of damage
simply can not occur.

The general circulation of this table sufficiently disturbed the authors
of the original work that they have published a paper in the Arboricultural
Journal (Gasson PE & Cutler DF 1998, "Can we live with trees in our
towns and cities?", [in] Arboricultural Journal 22(1) pp1-9) with the
summary:

"There is increasing concern that data on tree root spread in 'Tree
Roots and Buildings' (Cutler and Richardson, 1989) are open to misinterpretation
by insurers, home owners and arboriculturists. Insurers have tended to use
maximum root spread figures, which we believe to be statistically and biologically
unsound. This paper briefly examines the evidence and interprets this to show
that with sensible use of the available data, there should be little conflict
between trees and buildings in urban areas"

Their conclusion suggests that very different figures are appropriate as
safe planting distance - in general the distance which includes 75% of damage
attributed to a particular species. For smaller species the 50% boundary is
more appropriate whilst for particularly large growing species the 90% figure
is sufficiently cautious. This leaves the table looking more like this:

which you will see allows considerably more scope for urban tree
planting than the figures you give. Again, it must be stressed that this
type of damage and the need for these distances ONLY applies to
shrinkable clay soils.

What difference does it make if the Court claim has to be for nuisance rather
than trespass?

The following are essential:

1. The person making the claim (the Plaintiff) must be an owner of the land
affected. This would usually mean that they must either own the freehold or
have leasehold of the land.

2. The person alleged to commit the nuisance (the Defendant) should be in
occupation of the land from which the roots grow because he has to be in a
position to abate the nuisance.

3. Unlike trespass where damage is not necessary you must be able to prove
that damage has already been caused to your property. Having said that one
Judge has recently granted an injunction because there was "a threat
to the stability" of the Plaintiff's house. It would be right to say
that the roots had already been allowed to cause damage to a boundary wall
of the Plaintiff's property.

4. A reasonable person in the position of the Defendant must be able to have
foreseen that damage would be caused by the roots. If you are buying a property
in that situation you will be taken to have adopted or continued the nuisance.

Insurance Companies will often say that a building is old and that that is
the reason for the damage. They might even argue that the house should not
have been built so near to trees. Neither of these arguments is a strong one."

Direct Action

The owner of the land must not put poison down, but he is entitled to cut
the roots along the boundary line even if that kills the tree or shrub. You
should always try to reach an understanding with the neighbour who owns the
tree and if damage is likely to be severe, then it may be advisable to seek
help from a tree surgeon.

Useful Links

International
Society of Aboriculture - web site with many useful resources
including a list of ISA Certified (Certification is the only UK qualification
for arborists with a CPD requirement.) online advice for tree pruning and
tree work, an online shop stocked with tree related books and much more.